BURNEY v. HASKINS et al

Filing 5

MEMORANDUM & ORDER REOPENING CASE; Plaintiff's request to proceed in forma pauperis is hereby DENIED, without prejudice; that the Clerk of the Court shall administratively terminate this case, without filing the complaint or assessing a filin g fee, etc.; that the Clerk of the Court shall send Plaintiff a blank form application to proceed in forma pauperis; if Plaintiff wishes to reopen this case, he shall so notify the Court, in writing, within 30 days of the date of entry of this Order, etc.; that the Clerk of the Court shall close the case. Signed by Judge Claire C. Cecchi on 10/29/14. (Clerk's Note: IFP form mailed to Pltf)(jd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMAR BURNEY.
Civil Action No. 14-2777 (CCC)

Plaintiff.
v.

:

MEMORANDUM AND ORDER

SOT. L. HASKThS, et al.,
Defendants.

Plaintiff Jamar Burney. a prisoner confined at East Jersey State Prison, seeks
to bring this
civil action in forma pauperis. without prepayment of fees or security, asserti
ng claims pursuant
to 42 U.S.C.
U.S.C.

§ 1983. The Prison Litigation Reform Act of 1995 (the ‘Act”), which amends 28

§ 1915. establishes certain financial requirements for prisoners who are attempting to

bring a civil action informapauperis.
Under the Act, a prisoner bringing a civil action in forma pauperis must submit
an
affidavit, including a statement of all assets, which states that the prisoner is unable
to pay the
fee, 28 U.S.C.

§ 1915(a)(1). The prisoner also must submit a certified copy of his inmate trust

fund account statement for the six-month period immediately preceding the
filing of his
complaint. 28 L.S.C.

§ I 915(a)(2). The prisoner must obtain this statement from the appropriate

official of each prison at which he was or is confined. Id,
The entire fee to be paid in advance of filing a civil complaint is $400. That fie include
s
a filing fee of $350 plus an administrative fee of $50, for a total of $400. A prisone
r who is
granted in f’orma pauperi.c status will, instead, be assessed a filing fee of $350 and will
not be

responsible for the $50 administrative fee. If

in fàrma pauper/s

status is denied. the prisoner

must pay the full $400. including the $350 filing fee and the $50 administrative fee,
before the
complaint will be tiled.
If the prisoner is granted

in Jorma pauperis

of the $350 filing fee as follows. 28 U.S.C.

status, the prisoner must pay the full amount

§ 1915(b)(1). In each month that the amount in the

prisoner’s account exceeds $10.00. until the $350.00 filing fee is paid. the agency having
custody
of the prisoner shall assess, deduct from the prisoner’s account, and forward to the
Clerk of the
Court, payment equal to 20% of the preceding month’s income credited to the
prisoner’s

account. 28 U.S.C.

§ 1915(b)(2).

Plaintiff may not have known when he submitted his complaint that he must pay the
filing fee, and that even if the full filing fee, or any part of it, has been paid, the Court
must
dismiss the case if it finds that the action is: (1) frivolous or malicious; (2) fails to state a
claim
upon which relief may be granted; or (3) seeks monetary relief against a defend
ant who is
immune from such relief 28 U.S.C.

§ 1915(e)(2)(B). If the Court dismisses the case for any of

these reasons, the Act does not permit the prisoner to get his filing fee back.
If the prisoner has, on three or more prior occasions while incarcerated, brought an action
or appeal in a court that was dismissed on any of the grounds listed above, he cannot
bring
another action in /drma pauperis unless he is in imminent danger of serious physical injury.
28

U.S.C.

§ 1915(a).
In this action, Plaintiff failed to submit a complete in

required by 28 U.S.C.

§

fhrma

pauperis application as

1915(a)(l), (2). Although he submitted an application to proceed

formapauperis. he did not include a certified account statement.
THERLI ORE

it

ison this

da of

Z

2014

in

ORDERED that the Clerk of the Court shall reopen the file in this matter
by making a new
and separate entry on the docket; and it is further
ORDERED that Plaintiffs request to proceed in forina pauperis is
hereby DENIED,
without prejudice; and it is further
ORDERED that the Clerk of the Court shall administratively terminate
this case, without
filing the complaint or assessing a filing fee; Plaintiff is informed that
administrative termination
is not a “dismissal” for purposes of the statute of limitations, and that
if the case is reopened, it is
not subject to the statute of limitations time bar if it was originally
filed timely, see Jenkins v.
Superintendent ofLaurel Highlands, 705 F.3d 80, 84 n.2 (2013) (descri
bing prisoner mailbox rule
generally); Dasilva v. SherJf’s Dept., 413 F. App’x 498, 502 (3d Cir,
2011) (“[The] statute of
limitations is met when a complaint is submitted to the clerk before the
statute runs

....“);

and it is

further
ORDERED that the Clerk of the Court shall send Plaintiff a blank
form application to
proceed informa pauperis; and it is further
ORDERED that if Plaintiff wishes to reopen this case, he shall so
notify the Court, in
writing addressed to the Clerk of the Court, M.L. King, Jr. Federal Bldg.
& U.S. Courthouse, 50
Walnut Street, Newark. New Jersey, 07102, within 30 days of the
date of entry of this Order;
Plaintiffs writing shall include either (1) a complete. signed in /rma
pauperis application.
including a certified six-month prison account statement, or (2) the S400
fee including the S350
filing fee plus the S50 administrative fee; and it is further
ORDERED that upon receipt of a writing from Plaintiff stating that
he wishes to reopen
this case, and either a complete in Ji-ina pauperis application or
payment of the filing and

administrative fees within the time allotted by this Court, the Clerk of the Court will be directed
to reopen this case; and it is finally
ORDERED that the Clerk of the Court shall close the case and serve a copy of this Order
upon Plaintiff by regular US. mail.

CLAIRE C. CECCHI
United States District Judge

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